Separate Opinion of Vice-President Weeramantry

SEPARATE OPINION OF JUDGE WEERAMANTRY

Thiscasefocuses attention on the question ofthe binding nature ofpro-
visional measuresmore sharply and urgently than almost anyother in the
history of this Court or of the Permanent Court of International Justice.
As the Court stressesin its Order delivered today, "the present perilous
situation demands . ..immediate and effective implementation" of the
measurescontained in its Order of 8April 1993(para. 59).Today'sOrder
also has my full support.

The important question of the binding nature of provisional measures
is veiled in some obscurity as both academic and judicial writing speak
upon itwith an uncertain voice.Asthis casepre-eminently demonstrates,
the matter urgently needs examination for, so long as present uncertain-
ties continue, the Court is hampered in the full discharge of the judicial
functions entrusted to itby the United Nations Charterand the Statute of
the Court.

1note preliminarily the concern the Court has expressed regardingthe
sufferings ofthepeople ofBosnia-Herzegovinawhich, despite severalres-
olutions of the SecurityCouncil, are such as to "shock the conscience of
mankind and flagrantlyconflict with moral law and the spiritand aims of
the United Nations" (para. 52).The Court's apprehensionsatthe time of
the Order of 8April of an aggravation or extension of the dispute before
it, far from being alleviated, have been "deepened by the persistence of
conflicts on the territory of Bosnia-Herzegovina and the commission of
heinous acts in the course ofthose conflicts" (para. 53).

This opinion will deal with so much of the factual material placed
before it as is pertinent to a consideration of the question of law under
discussion and ofthe urgency ofthe need for itsresolution. This examina-
tion becomes necessary in the light of the provision of Article 41 of the
Statute ofthe Court thatthe Court shall have the power to indicate provi-
sional measures "if it considers that circumstances so require". The
examination offacts that followstakesplace onlywithin the ambit ofthat
phrase. Theensuingbriefstatementregarding thefactswillshowthat, giventhe

highest standards of caution demanded for making a provisional assess-
ment forthe purpose ofinterim measures,these standardsare satisfiedin
this case by thematerial placed before the Court.The essentialfacts are
recounted in the barest outline, so that the question of law addressed in
thisopinion maybe seenin itsproper and realisticcontext.This examina-
tion ofthefactsbeing ofapurelyprovisionalnature, does not involveany
definitive findings nor does it affect the decision on the merits that will
need to be made at a later stageofthis case.

TheApplicanthasplacedbefore the Court information froma diversity
of independent sources in support of its contention that, after the date of
the Court's Order of 8 April 1993,there has been a continuing series of
actswhich constitutea clearviolation ofthat Order. Thismaterial can be
classified into three groups - accounts and descriptions carried by the
international media,statementsemanatingfromneutral and independent
observers,and statementsissued by the Respondent Government and by

the Government ofthe Republic of Serbia.

For the purpose of the provisional assessment which follows,it is not
necessaryto take intoaccount the firstgroup ofmaterials.Theplethora of
reports placedbefore theCourt, which werecarried by well-knowninter-
national media,dealt with shelling,destruction of ancient mosques, sup-
pliesfromYugoslaviatothe Serbsin Bosnia,and murder,rape andtorture
on an extensive scale. However,since, in a complex international situa-
tion such asthis,mediareports bythemselvesmaybe an uncertain guide,
they have not been taken into account in this assessment.This approach
stems also from the natural caution that needs to be exercisedin judicial
fact-finding, eventhough it be ofa provisionalnature.

In the second category are statements emanating from disinterested
sources such as officials of the Office of the United Nations High Com-
missioner for Refugees (UNHCR), the Chairman of the United States
Senate'sCommitteeon European Affairs,HelsinkiWatch, an EC media-

tor, the Director of the United States Bureau of Refugees Program, and
various United Nations officials.Theactsreferred to in these statements,
al1of them subsequent to the Court's Order of 8 April this year, include
the massacreofwomenand childrenina"heinous policy ...nothing short
of genocide" (Chairman of United States Senate's Committee on Euro-
pean Affairs,9.4.93);the shellingof Srebrenicawith shellssetto explode
in mid-air to wreak the greatest havoc on people caught in the open
(UNHCR officiai, 13.4.93);the wounding of large numbers of civilians,
resultinginbodies and parts ofbodies,someingruesomecondition, being
loaded ont0 ox carts and wheelbarrows after such an attack (Canadian
United Nations official, 15.4.93);atrocities committed in Bosnia-Hene-372 APPLICATION OFGENOCIDECONVENTION (SEP . P.WEERAMANTRY)

govina by Serbian military and paramilitary forces (Second Report of
Helsinki Watch, 17.4.93);the shellingof Sarajevowith an intensity such
that United Nations officials logged 1,200 shells exploding by mid-
morning (United Nations officialsin Sarajevo, 4.7.93);the bombing of
mosquesasaprelude to "ethnic cleansing" campaigns(UNHCR official,
9.5.93);the presence of 1.4million refugees in Bosnia whose food sup-
plies, already atstarvation levels, would be cut in half by the fighting
(UNHCR, 1.7.93);the reduction of a town of 6,000people to 50people
wandering around (UNHCR official, 10.5.93);the killing of 1,400chil-
dren and the wounding of 13,000more (United Nations officials in Sara-
jevo, 5.7.93.);the involvement of the Yugoslav NationalArmy in at least
part of the shelling of Srebrenica(Chairman of United States Senate's
Committee on European Affairs,20.4.93);the passage of supplies to the

BosnianSerbsthrough Belgrade(ECmediator, 19.4.93);assistancetothe
Bosnian Serbs by helicopter missions flown from Yugoslavia (military
specialist at King's College, London, 24.6.93); and the rape of women
numberedinthetens ofthousands (Helsinki Watch,8.6.93).Theitems set
out above represent only a portion of the material placed before the
Court. Some of these statements are accompanied by circumstantial
details,sometimesofalurid nature,to whichitisnot necessasr forpresent
purposes to refer. Cumulatively, the material in this second category is
morethan adequateto justify aprovisionalfinding sufficientforthe pur-
poses ofthis request.

The third category of materials consists of statementsin officia1com-
muniquésissuedintheperiod 8-11May 1993bythe Respondent Govern-
ment and the Government ofthe Republic of Serbia.These arecontained
at pages 43-49 of the second request for the indication of provisional
measures, dated 27July 1993.

Arnongthestatementscontainedinthefirstcommuniqué ofthe Repub-
lic of Serbia is the description of the current conflict in Bosnia-Herze-

govina as a "just battle for freedom and the equality of the Serbian
people". The Republic States that it has provided aid in "funds, fuel,
raw materials, etc." to the Serb Republic in Bosnia at great sacrifice to
itself.There is alsoa statementthat the Republic of Serbiahas been

"unreservedly and generously helpingthe Serb Republic in spite of
theenormous problems it had to face due to sanctions introduced against it by the UN Security Council" (second request by Bosnia,
p. 43).

This information must be read with the communiqué issued by the
President of the Republic of Serbia,released by the Yugoslav telegraph
service on 11May 1993and carried by the BBCin its summary of World
Broadcasts on 13May (secondrequest by Bosnia, p. 46).Thisasserts that
inthe past two years the Republic of Serbiahasmade massive efforts and
substantialsacrifices to assistthe Serbsoutside Serbia.Thecommuniqué
continues: "Most of the assistance was sent to people and fighters in
Bosnia-Herzegovina." The intemational sanctions are described as
brutal, and solidarity is expressed with the Serbs in Bosnia-Herzegovina.
Sufficient reason exists, according to the communiqué,to halt the war
as "Most of the territory in the former Bosnia-Herzegovinabelongs now
to Serb provinces." The communiqué reiterates that the Serbs in
Bosnia-Herzegovinahave achieved most of what they wanted owing to

the "great deal of assistance"they received from the Republic of Serbia.

The communiqué, issued by the Federal Govemment of Yugoslavia
(ibid.,p.44),expresses its "indignation and profound concem" that the
Republic of Sprska (i.e.,ofthe Serbsin Bosnia) had decided not to accept
the Vance-Owen Plan but to leave it to a referendum among the Serb
people of Bosnia-Herzegovina. In view of this, the Federal Republic
announces that it will reduce its future aid to the Republic of Sprska
"exclusivelyto contingents of food and medicaments".

Such material placed by the Applicantbefore the Court must naturally
cause grave concem regarding the Respondent's compliance with the
Court's Order of 8 April. It is not difficult in the light of this material to
reach a provisional findingthat the conditions of Article 41 are satisfied
forthe activation of the Court's provisionalmeasuresjurisdiction.

Byway of contrast tothe range and independence of the sourcescited
by the Applicant in support of its assertions of fact, the assertions of fact
by the Respondent lack that basis of wide and impartial support but
depend mainly upon a report compiled by the Yugoslav State Commis-
sion for War Crimes and Genocide. There can be no doubt regarding the
considerablesufferingscurrentlybeingundergone by the Serbianpeople
in Bosnia-Herzegovina and thismustnecessarilybe ofdeep concem tothe
Court. Yet the matter under examination is non-compliance with the
Court's Order of 8 April, and there is an insufficiency of independent
material sufficientto show such a non-compliance by Bosnia. 1sTHE ORDER OF 8APRIL1993
LEGALLB YINDIN G

Against the background of the foregoing summary of the bases for a
provisionalfinding, this opinion proceeds to consider the legal question
ofthe binding nature of provisional measures. Asa learned writer on the
subjectofinterim measureshas obsened ofthe inter-warliterature onthe
subject, it presents "the picture of an extremely colourful - not to say
confusing - mosaicofopinions" '.Suchapicture isnot inthe interestsof
international justice.

Theproblem isnot an easyone.On theonehand, there isthe lackof an
opportunity for a definitivefinding offact and, on the other,the compel-
ling needfor a steadyinghand to be appliedto preventirreversibledamage
to aParty.Thesearepowerfulconsiderations tobe balanced againsteach
other and cal1for consideration from a variety of perspectives,not the
leastofwhichistheimportance ofachievingthe purposes ofinternational
justice whichthe Court wascreatedtofulfil.This isthus a question whose
importance transcends the matter presently before the Court, important
though it be.

(a) BindingNature ofa ProvisionalOrderas Distinguished
from itsEnforceability

Asthe lack ofmechanismsfor enforceabilitysometimescloudsdiscus-
sionsofthe binding nature ofthe orders ofthis Court,a consideration of
the binding nature of provisional measures must start with the clear dis-
tinction that existsbetween the question ofthe legalobligation to comply
with an order and the question ofitsenforcement2.Thefact that an order
cannot be enforced does not in any manner affectits binding nature, for
the binding nature of an order is inherent in itself. It imposes a positive

obligationrecognizedbyinternational law.Whethersuchanorder iscom-
plied with or not, whether itan be enforced or not, what other sanctions
lie behind it- al1these are external questions, not affectingthe interna1
question of inherent validity.

In theAnglo-IranianOil Co.case, this Court, having ordered interim

-
JerzySztuckiInterim MeasuresintheHagueCourt:AnAttemptuta Scrutiny,1983,
p.283.
See ASILS International Law Journal, Vol. 9 (1985), p. 176; and see
Jerome B. Elkind,Interim Protection: A FunctionalApproach, 1981157, for an
instancecited bytheuthorof a blurringoftheseissuesevenin learneddiscussion.measures, subsequentlyheld it had no jurisdiction on the merits l,but, in
the meantime, the United Kingdom, the applicant in the case, took the
matter to the Security Council, seekingenforcement under Article 94 of

the Charter. This attemptfailed and, through ablurring ofthe distinction
here being made, this failure at enforcementbecame "the focal point for
commentary on various aspects of interim measures, and particularly on
the question of whetherthere is a dutyofcompliance"*T . he Court, while
enjoiningthe parties, went out ofitswayto point out that those measures
"in any case retaintheir own a~thority"~.It isto be noted also that deci-
sions ofthe SecurityCouncilas to whetherit willenforce an order or not
are not determinative of the question whetherthe order imposesa legal
duty4.

Evenin domesticlaw,the positivisticviewthat asanction isessentialto
itsvalidityhaslongbeenleftbehind. Modern research,bothjurispruden-
tial and sociological,has shownthe inherent validity of a lawto be inde-
pendent of the existence of a sanction to enforce it. This is doubly so in
regard to international law.

Indeed, it scarcely needs mention that in international law the Aus-

tinian viewthat a sanction isnecessarytothe existenceof a rule oflaw,or
of a legal prescription, has always been particularly inappropriate. The
treatment of provisional measures as not imposing legal obligations
becausethe Court hasno power ofenforcementisthus untenable. Viewed
in this light, a provisional measure, no differentlyfrom a final order, if
pronounced by a court accordingto due forms and processes and within
itsjurisdiction, is inherentlyvalid and as such carries with it a duty of
compliance.

Whenthis Court, dulyacting within itsauthority andjurisdiction, indi-

catesprovisionalmeasures,itisintheexpectation that thosemeasureswill
be complied with, in accordance with international law. Their violation
must therefore be viewedwith great concern. The question of the obliga-
tionto complymustatal1timesbesharplydistinguishedfromthequestion
of enforceability.

Anglo-IranianOil Co., Interim Protection,I.C.J. Reports 1951,p. 89; and Anglo-
IranianOilCo.,Judgment,I.C.J.Reports 1952,p. 114.
Courtof Justice",CaliforniaWesternInternatioLawf Journal,Vols.6-7(1975-1977),l
p. 350;emphasisadded.
Anglo-IranianOiCo.,Interim Protection,I.C.J.Reports1951,p. 94.
SeeCrockett,op.cit.,p. 376. APPLICATIONOFGENOCIDECONVENTION (SEP .P. WEERAMANTRY)
376

(b) BindingNature ofProvisionalOrdersasResulting
from theInherentAuthority ofa JudicialTribunal

Thefunction ofajudicial tribunal, once an issuehasbeenbrought to it,
isto takethe necessarystepsaccordingto lawtowardsreachinga decision
in accordance with the principle of the equality of parties. This presup-
posesthatthe issuebrought to it,oncecommittedto the court, must asfar
as possible be preserved in that form, free of interference by unilateral
action ofaparty, until the determinationmade bythe court. It means also
that the principle of equality cannot be disturbed by the superior force

availableto one party, wherewith to impair or interfere with the subject-
matteruntildetermination. Itisthus inherentintheauthority ofthattribu-
nal that, ancillary to the power ofjudgment, it must have power to issue
incidental orders to ensure thatthe subject-matterofthe suit ispreserved
intact untiljudgment.

Such a power would of coursebe completelynegatived if a party were
under nolegalobligation to obeysuchan order and werethereforefreeto
disregard it. In certain cases, as one writer puts it, this could "make a
mockery of thejurisdiction on the merits" 'The anomaly is evengreater

wherethe unilateral action of a party is ofsuch an order asto destroythe
subject-matterwhich isin litigationbefore the court. Even strongeristhe
case where such action threatens to destroy or undermine the very exis-
tence of a party.

Totaketheviewthat a court seisedofamatterhasnopowertoact inthe
faceofaunilateral threat tothe subject-matterbyoneofthe partiesbefore
itwould appear then toresultinthe contradictorysituation ofthecourt on
the one hand havingjurisdiction to hear a case and on the other being
denied the effective and necessary authority to discharge the task which
has thus been validlyentrusted to it. To viewprocedural measuresas not

binding on the parties is to enable the ground to be cut under the feet
not only of the opposite party but also of the court itself.A reasonable
construction, in total context, of the judicial powers entrusted to the
court doesnot seemcapable ofsustainingsuchameaning.The ruleunder
discussion has been described as a "principle of institutional effective-
ne~s"~.

Court of Justicethrough U.SStaff in Tehran:Fiat Iustitia, PereatT',rVirginia
Journal ofInternationalLaVol. 20,No. 3(1980p. 303.
V.S. Mani, "Interim Measuresof Protection:Article41 of the ICJStatuteand
Article94 of theUN Charter",Indian JournaofInternational LawVol. 10(1970),
p.362. Support for the universality of such a conceptual approach is to be
found in Electricity Company ofSofa and Bulgaria.This Order recites :

"Whereasthe abovequoted provision [Article41(l)] ofthe Statute
applies the principle universallyaccepted by international tribunals
and likewiselaid down in many conventionsto which Bulgariahas
been a party - to the effect that the parties to a case must abstain
fromanymeasurecapable ofexercisinga prejudicial effectin regard
to the executionofthe decision tobe givenand,in general,not allow
anystep ofanykindto betaken which mightaggravateor extendthe
dispute" (P.C.I.J.,SeriesA/B, No. 79,p. 199).

The Court has also expressedconcern that itsJudgment should not be
anticipated by unilateral action of a party. In the AegeanSea Continental
Shelf case,it obsewed :

"Whereas the power of the Court to indicate interim measures
under Article 41 of the Statute presupposes that irreparable preju-
diceshould notbecausedto rightswhicharethe subjectofdisputein
judicial proceedings and that the Court's judgment should not be
anticipated by reason of anyinitiativeregarding the matters in issue
before the Court" (I.C.J.Reports1976,p.9,para. 25).

Anyinterpretation ofthe relevantprovisions oftheCharter, the Statute
orthe Rulesina sensethat provisionalmeasures do not imposelegalobli-
gations on the party at whom they are directed thus does not accord with
the structural framework ofjudicial power.
Conceptual reasons such as this persuaded Hambro, one of the early
Registrars of this Court, to the viewthat the power to act by way ofpro-
visionalmeasuresisa part ofjudicial poweralready existinginprinciple,
apart fromspecificprovisions to that effect.In his words :

"The Court in exercising its authority under Article 41 does
only in effect give life and blood to a rule that already exists in
principle." '

The same.author argues that, under general principles of international
law, al1Statesparties to an international dispute subjudiceare under an
absolute obligationto abstainfrom al1actsthat would nullifytheresult of
thefinal judgment or aggravateor extend the dispute2.

tion Indicated by theInternationalCourtof Justice",iRechtsfagen der Znternatio-
nalenOrganisation,Festschrifttr unsWehbergzuseinern 70.Geburtstag,1956,p. 167.
Zbid.,p168. Hence, Hambro reaches the conclusionthat :

"it would not bein conforrnitywiththe augustcharacter ofthe Court
as an 'organofinternational law'and asthe 'principaljudicial organ
ofthe United Nations' ...to make any decisionthat the parties were
freeto respect or to ignoreaccording to their own pleasure" l.

This argument istaken yetfurther by other scholarswhoargue that the

bindingnature ofinterlocutoryinjunctions and similarmeasures isa rule
universallyrecognized and as such may evenbe considered to be a "gen-
eralprincipleoflawrecognizedbycivilizednations" under Article38(1)(c)
ofthe Court's Statute2.It is of interest that someinfluential earlywriters
on thistopic shared this view.Thus Dumbauld3and Niemeyer4saw the
dutyto observe interimprovisionalmeasuresasexistingindependently of
the Statute and as therefore lying upon the party in question even if the
Statute had containedno such provisions dealing with this matter.

Niemeyerdescribesitas abasic normativeprinciple (Nom-Grundsatz)
that :

"from the momentthat, and aslongas,a dispute issubmittedtojudi-
cialdecision and one is awaited,the parties to the dispute are under
an obligation to refrainfromanyact or omissionthe specificfactual
characteristics ofwhichwouldrender the normative decision super-
fluous or impossible" (tran~lation)~.

Account must, however,be taken ofthe fact that a number of eminent
writers, including A. Hammarskjold, another early Registrar, have

expressed a strongly contrary view6.Among the factors weighing with
them are their stressupon the word "indicate", the lack of enforceability
and the location of Article 41 in the Chapter of the Statute dealing with

' Hambro, op. cit.,pp. 165-167.
See,for example, Elkind, op.cit.,p. 162.Elkind, indeed, makesthispropositionthe
centraltheme ofhistreatise onthe subject - seeChapter2 ofElkind'sworkin whichhe
citesAnglo-Arnerican, Roman, Soviet and Hindu law in support of this proposition.

EinstweiligeVerfügungendes Weltgerichtshofi,ihr Wesen und ihre Grenzen1, 932,
pp. 15-16.
"Sobald und solange ein Streit einer richterlichen Entscheidung unterworfen und
eine solche zu erwarten ist, haben sich die streitenden Parteien jeder Handlung und
jeder Unterlassung zu enthalten, deren Faktlzitat die normative Entscheidung über-
flüssigoder unmoglich machen konnte." (Op.cit.,p. 16.)
See A. Hammarskjold, "Quelques aspects de la question des mesures conserva-
toires en droit international positif', in Zeitschriftfür auslandischesoffentlichesRecht
undVolken-echtV , ol.V(1935),p. 5.379 APPLICATION OFGENOCIDECONVENTION (SEPO.P.WEERAMANTRY)

procedure and such mattersas the language ofthe Court - thus suggest-
ingthat it was not of importance in a substantive sense.

However, such considerations,each of which may no doubt be separ-
atelyansweredl, seemtobe outweighedbythe conceptualfactorsalready
outlined and the linguistic and other considerations which follow.

The importance of the conceptual considerations discussed above
becomes apparent when, from a practical standpoint, one looks at the

gravity of causes for which the provisional measuresjurisdiction of the
Court isused - prevention ofirreparableprejudice orinjury; ofactionin
amannerso asto renderthe finaljudgmentnugatory ;ofdestruction ofthe
subject-matter; and of aggravation of the dispute.The gravityof each of
these reasons reinforces the viewthat the Court's power, once exercised,
cannot stillleavethe parties free to act asthough unrestrained.

Theviewthat provisionalorders are part ofthe inherent authority of a
judicial tribunal isthus one which is sustainable on generalprinciple, on
practical necessity, and on the basis of a not inconsiderable body of
authority. Principles that may be invoked in supbort of such a view
includethe principle of equality ofparties,the principle of effectiveness,
the principle of non-anticipation by unilateral action of the decision of
the Court, and also the wide and universal recognition of the enjoining

powers of courts as an inherent part oftheirjurisdiction.

(c) BindingNature ofProvisionalMeasuresasResulting

from theTerminologyoftheCharter,theStatuteand theRulesof Court

The language of Article 41 of the Statute uses the word "indicate"
rather than "order" in relation to provisional measures, thus opening
up discussion as to whether it is less binding in its nature than other
decisions.

' In relationtothe argumentthat thepositioning ofArticle 41inthe proceduralpor-
tion of the Statute in some way weakens its power, Professor Greigpoints :utthat

"it could evenmore strongly be argued that Article 41is placed under theheading
procedure because the goveming principle is not to be found in Chapter II, but as
part of the Court's inherent incidentaljurisdiction. Article 41refore,as set
out in the PermanentCourt's judgment in the ElectricityCompanycase,an expres-
sion ofthat principle and the means of givingeffect(D.iW.Greig, "The Bal-
ancing of Interests and the Granting of Interim Protection by the International
Court", AustralianYearBook ofInternationaLaw,Vol. 11(1991),p. 131.) It is useful to examinethis question from the standpoint of the other
relevantterminologywhichappearsinthe Statuteand the RulesofCourt.
There are severalavenues along whichthislinguisticexamination can be
approached.

(i) Theword "indicate"

Theoriginaldraft ofArticle41,in French,prepared by Mr. Raoul Fer-
nandes, used the word "ordonner'" whichtoo appeared as "order" inthe
Englishtranslation. Mr. Fernandes' suggestionthat such order should be
supported by effectivepenalties did not meet with the approval of other
members of the Advisory Committee such as Elihu Root, de Lapradelle
and Lord Phillimore, and a new draft was submitted wherein the words

"pourra ordonner" were replaced by "pouvoir d'indiquer" with an
English translation reading "power to suggest". At the Fifth Meeting of
the Sub-committee,Mr. Huber of Switzerlandinsisted on a stronger term
than "suggest" and the word was replaced by "indi~ate"~.

This drafting history shows that the Court's power goes beyond mere
suggestionor advice,but carriessomeconnotations ofobligation.Indeed,
the French word "indiquer" probably goes even further in this direction
than the Englishword"indicate", forone ofthe meaningsof"indiquer" is
"to draw up (a procedure, etc.); to dictate, prescribe, lay down a line of
action, et^.)"^.

(ii) Theword"ought"

To be noted first of al1is the factthat, within the context of Article 41
itself, one finds the word "ought" being used in reference to the provi-
sionalmeasuresthat areindicated.The word "ought" carriesthe connota-
tion ofan obligation,andtakesthe matterfurther inthe direction ofaduty
being imposed than does the word "indicate" taken by itself.A reference
to the French versionofthe Statuteratherstrengthensthisconclusion,for
it uses the word "doivent" which carries the implications of "should" or
"ought" in the senseofthe existenceof a duty4.Indeed, a perusal ofstan-
dard dictionaries showsthat the word "devoir", whether used asa verbor
as a noun, carries heavy overtones of duty or obligation,as in "it is your
duty to honour your parents" or "do your duty come what may" (for the

verb) or (a)"duty" asto do one'sduty; (b)"obligation" asthe obligations
of a citizen(forthe noun). Though these meanings do not by themselves

Committee,June16th-July24th,1920,28thmeeting,AnnexeNo.3,op. 609.roceedingsof the
Documentsof the5thMeetingof thenird Committee,Annex 16,p. 172.
Harrap'sStandardFrenchandEnglishDictionary,Vol. 1,p. 1:18.
Zbid.,pD 53.381 APPLICATION OFGENOCIDECONVENTION (SEP .P.WEERAMANTRY)

conveythe idea ofa legalduty, itisclearthatboththe English "ought" and
the French "doivent" considerablyreinforce the word "indicate".

Approaching the matter from another angle, another writer observes :

"In Hohfeldianterms a legalrightimports a correlative legalduty.
Thus the word 'ought' inthe phrase 'measures which ought to be
taken to preserve the respectiverights of eitherparty' would seemto
refer to a legal duty."

This argument of correlative connotations assumes relevance also in
relation to the word "power".

(iii) "Mesuresconservatoires"
Further reinforcement is given to this stronger meaning when we see

that the expression "provisional measures" in English is again weaker
than the French expression "mesures conservatoires", which givesmore
emphasis than the Englishphraseto the importance ofpreserving the sub-
ject-matter without damage. Whilethe Englishwordstaken bythemselves
may seem to stress the provisional aspect of these measures, the French
expression stresses more clearly what the whole exercise is about -
namely the preservationintact ofthe subject-matter ofthe case.Indeed, in
the English translation of Mr. Fernandes' original draft, the words
"mesures conservatoires" were correctly translated as "protective
measuresW2b ,ut while the expression "mesures conservatoires" remained

constantthrough altered French versionsofthe provision and stillremains
in Article 41, the English translation switched to the weaker expression
"provisional measures" which of course does not exactly parallel the
French text.

The discrepancybetween the English and the Frenchtexts wasthe sub-
ject of commentat a meeting of the judges of the Permanent Court when
they discussed the amendment of the Rules relating to provisional
measures. Sir Cecil Hurst noted the phraseology "mesures conserva-

toires" and "interim protection" in the two versions and expressed a
doubt as to whether the two expressions exactly corresponded3. The
Registrar then drewattention to the differentexpressionsused in English
in Article 41ofthe Statute and Article 57ofthe Rules asthey then existed,

' Elkind,op.cit.,p. 153.
SeeElkind,op.cit.,p. 44.
Acts and Documentsconcerningthe Organizationof theCourt,SecondAddendumto
No.2,p. 253.

60for the rendering into English of the expression "mesures conserva-
toires" '.

(iv) fie word'fpower"
Perhapsmoreconclusivethan al1ofthese inreinforcingthis interpreta-

tion of something more than a mere moral duty, is the use at the com-
mencement of the Article of the word "power". If al1that Article 41
enablesthe Court to do isgiveexhortations to parties, whichare ofa non-
bindingnature, theuseofthe word "power" inenablingthe Court to do so
isdifficultto understand.Oneneeds powerto imposeabindingobligation
butone doesnot need "power" to giveexhortatory advice.Onecannotsee
the Statute as solemnlyinvestingthe Court with specialpower under Ar-
ticle41 ifthe soleobjectof that power wasto proffer non-binding advice,
whichthe parties wereperfectlyfreeto disregard.Awordwithsuchheavy
connotations as "power" must clearly havebeen meant to givethe Court
an authority itdid nototherwisehave - an authority to imposeonparties

an obligationwhich,without such a word,would not be binding on them.

Power,inthe languageofanalyticaljurisprudence, meansthat those on
whomthat power isexercisedare under adutyto complywiththe exercise
ofthat power,for, ifno dutywereto result,there wouldbe noneed forthe
exercise of "power". The well-known Hohfeldian analysis of rights,
whichhas receivedwideacceptance,classifiesliabilityas the jura1corre-
lative of power2, thus indicating that, when a legal power is exercised,
a legal liabilitynsues to comply with that exercise of power. Such con-

siderations lead to the conclusion that "indications" issued under
Article 41 carry more than a merely moral duty to comply with the
measuresindicated 3.

(v) fie descriptionoflesssigniJicantmeasuresas orders

Another approach to the question is along that of the interesting
argument adduced by Hambro that orders made by the Court under
Article48ofitsStatute,which are described asorders inthe Articleitself,
and which relate to comparatively minor matters such as the form and
time in which each party must conclude its arguments are undoubt-
edly enforceable under Article 53 of the Statute. Hence, the "much

1 Acts and Documentsconcerningthe Organizationofthe Court,SecondAddendumto
No2 On theHohfeldiananalysisandthe many writersupon it, seSalmond on Juris-
prudence,12thed., 1966,p.225.
3 Elkind,op.cit.,153.more solemn and serious orders under Article 41" should be binding
aswell l.

A misunderstood passage in this context is the following from Free
Zonesof UpperSavoy andtheDistrict ofGex:

"[Olrders made by the Court, although as a general rule read in
open Court, due notice having been given to the Agents, have no
'binding'force(Article 59of the Statute) or 'final'effect (Article 60
of the Statute) in decidingthe disputebrought by the Partiesbefore

the Court ..."(P.C.I.J.,SeriesA, No.22,p. 13.)
The Court was there merely giving expression to the principle that
"an order has no bindingforce ontheCourtin itsultimate decision on the
me rit^"^.

(vi) Theundertakingto complywith "decisions" of the Courtin tems of
Article94of the UnitedNationsCharter

By Article 94 (1) everyMember of the United Nations undertakes to
comply with the decisionsof the Court in any case to which it is a Party.
When the Court decides to indicate provisionalmeasures is it making a
decision?
Anindication that provisional measuresaretreated asa decisionbythe

Court itself istheir description assuch in Articles74(2),76(1)and 76(3)
ofthe Rules of Court. AsHambro argues,interim measures are certainly
treated as decisionsby these Articles3.

Alsoto benoted isthatthe Frenchexpression"pour statuer d'urgence",
appearing in the French version of Article 74 (2) of the Rules of Court,
conveysthe idea of making a decision orjudgment. In Articles76(1)and
76(3),however,the French version usesthe sameword "décision".

One notes in this context the statement of one of the most eminent

writers onthe jurisprudence of the Court who, in discussingwhetherthe
obligation derived from Article 94 (1) of the Charter is wide enough
to embraceinterlocutory orders, has observed that "the word 'decision'
in the Charter refers to al1decisions of the Court, regardless of their
f~rm"~.Thiswouldincludeprovisionalorders as well.

Hambro, op.citp. 170.
SeeCrockett,op.citp.377,emphasisadded.
Hambro, op.citp. 170.
ShabtaiRosenne, TheLaw andPracticeof theInternationalCou1985,p. 125;see,
also,Rosenne,TheInternationalCourtofJustice1957,p.82,tothesameeffect. In this context,it isto be noted that Judge Eliashas also expressed the
view that an indication of preliminary measures has the same force as
a judgment since it is at least an interim judgment'.This supports the
viewthat provisionalmeasures have beentreated by the Court as ajudg-
ment.

Manyroutes ofinternalanalysisofthe relevantinstrumentsthus leadto
the same conclusion,namely, that an indication of provisionalmeasures
by the Court is not merely a formula of exhortation but a decisionexer-
cised under the powersof the Court which imposes an obligationon the
party to whom they are directed, which isof a legal and binding nature.

Nor does this conclusion,reached upon a purely linguisticanalysis of
the phraseology used in the Court's instruments, lead to a conclusion
which isother than one eminentlysuitedto the purpose and the function
of thejudicial process, especiallyas it is exercisedatthe highestinterna-
tional levelthrough the International Court.

(d) BindingNature ofProvisionalMeasuresas Znferred
from Decisionsof the Court

Wearenot on clear ground here,but there is much that is suggestiveof
the Court's implicit acceptance of the binding nature of provisional
measures, quite apart from the Court'streatment of provisional measures
as "orders" or "decisions" in itsinternal practice.

In Nuclear Tests,for example, the Court recited without comment the
pleadings ofthe AustralianGovernment that

"in the opinion of the Government of Australia the conduct of the
French Government constitutesa clear and deliberatebreach of the
Order of the Court of 22 June 1973" (Nuclear Tests (Australia
v. France),Z.C.J.Reports1974,p. 259,para. 19).
Whilethiswas, ofcourse,the position ofAustraliaand not oftheCourt,
the selection of this averment and its reproduction without adversecom-
ment leaves room for inferring that the Court gavethat position its tacit
endorsement. As Sztuckiobserves :

"the Court is responsible for its own selection of quotations and
for supplying them with, or leaving them without, a commentary.
The quoted passage from the Court's order can therefore be inter-

lems,1983,p.79.iasTheInternationalCourt ofJusticeand Some ContemporaryProb-385 APPLICATION OFGENOCIDECONVENTION (SEP .P.WEERAMANTRY)

preted as a tacit and indirect endorsement of the applicant's posi-
tion."l
Themarked lack ofaffirmativedecisions ofthe Court onthis matter is
another factor attractingattention to theimportance ofa consideration of
this question. There is a paucity also of dicta of judges of the Court in
separate opinions, declarations or dissents.

Among otherjudicial dicta to the same effect,we should note the dec-
laration of Judge Ignacio-Pinto in FisheriesJurisdiction2where, with ref-
erenceto interim measuresordered by the Court, he viewedcertain later
incidents involvingnumerous clashes in the disputed fisheryzoneas acts
which"constituteso manyflagrantviolationson either side" ofthe opera-
tivepart of the Ordersin question.

The Permanent Court commented in the PolishAgrarian Reformcase
thatthe interim measuresrequested would resultin a generalsuspension
ofagrarian reformin sofaras concerns Polishnationals ofGerman race3.
The implication of such an observation could wellbe that in the Court's
viewthe interim measuressought would havea legallybinding effect.

The often-quoted statement of the Permanent Court in FreeZones of
UpperSavoyandtheDistrictofGex that suchorderhad "no 'binding'force
...or 'final'effect...in decidingthe disputebrought bythe Partiesbefore
the C~urt"~does not have the conclusive effect it is sometimes repre-
sentedashaving,aspointed outearlierinthisopinion. That statementwas
restricted to the impact of those measures on the final order. Clearly an
interim order does not have a binding force or final effect upon the
eventual decision of the dispute as it is clearly interlocutory and pro-
visional.

From the recent jurisprudence of this Court, perhaps the case of

Military and Paramilitary Activitiesin and against Nicaraguacould
best be cited as indicative of a duty lying on a party to take "seriously
into account" provisional measures indicated by the Court and "not
to direct its conduct solely by reference to what it believes to be its
rights"5.

' JerzySztucki,op.cit.,pp. 272-273.
FisheriesJurisdiction(UnitedKingdomv. Zceland),ZnterimProtection,Z.C.J.Reports
1973P.C.I.J.,SeriesA/B, No.58,p. 178.
P.C.IJ.,SeriesA, No.22,~. 13.
Militaryand ParamilitaryActivitiesin and againstNicaragua(Nicarv.United
States ofAmerica),Z.C.J.Reports 1986,p. 144,para.289. (e) BindingNature ofProvisionalMeasuresas Inferred
from Extra-judicialWritingsofJudgesoftheCourt

Judges ofthis Court, writing extra-judicially, have contributed much to
the viewthat provisionalorders arebinding.

Judge Jessup,in his forewordto an academic work which reachesthe
conclusion that such orders are binding, has given that conclusion the
weight of his support by observing that the author "weighs the pros and

cons and soundlyconcludes that such orders arebinding" l.

Sir Gerald Fitzmaurice observes :

"The whole logic of the jurisdiction to indicate interim measures
entails that, when indicated,they arebinding - forthisjurisdiction
isbasedupon the absolute necessity,when the circumstances cal1for
it,ofbeing ableto preserve, andto avoidprejudiceto, the rights ofthe
parties,asdetermined bythefinaljudgment oftheCourt.Toindicate
special measures for that purpose, if the measures, when indicated,
arenot even binding (let alone enforceable), lacks al1point ..."2

Judge Lauterpacht, while strongly of the view that the Statute did
more than impose a purely moral argument, also expressed some reser-
vations :

"It cannot be lightly assumed that the Statute of the Court - a
legal instrument - contains provisions relating to any merely moral
obligations of States and that the Court weighs minutely the circum-
stances whichpermit itto issuewhat isno more than an appealtothe
moral sense of the parties. At the same time, the language of
Article 41 of the Statute precludes any confident affirmation of the
bindingforce of the measures issued by it under that Article ..."3

Judge Hudson of the Permanent Court in his treatise wrote that the
word "indicate" "is not less definite than theterm orderwould havebeen,
and it would seem to have as much effe~t"~.

PhilipC.Jessup, Forewordto Elkind,op. cit.,XIII.
Fitzmaurice,The Law and Procedure of theInternational Courtof Justice,Vol. II,
1986,p. 548.
Sir Hersch Lauterpacht,TheDevelopmentof InternationalLawby theInternational
Court,1958,p.254.
Manley O. Hudson, ThePennanentCourtofInternationalJustice,1920-1942,1943,
p.425. Thishas thus farbeen a strictlylegal analysis. Howeverthis Court can-
not losesightofthe human factorwhichloomslarge,particularly ina case
such as that which is now before the Court. It is an aid to this necessary
dimension in the appreciation of a legal problem to take a glance at the
great historical processes that brought this Court into existence. The
Permanent Court, setup inthe aftermath of the most devastatingconflict
the world had seen, embodied the aspirations of a war-tom generation
anxiousto putbehind themthe horrors ofinternational lawlessnessand to
enthrone international law. They sought to achievethis through a Court

operating internationally on the mode1 of the superior courts which
ensured the mle oflaw at a domesticlevel.

Despite strong contentions in favour of a jurisdiction more closely
modelled on the analogy of a Supreme Court, the Statute of the Court
drafted by the Advisory Committee of Jurists did not givethe Court the
fulljudicial powersnormallyassociated with acourt ofsuperior jurisdic-
tion. Worthy of recall in this context is the speech of Mr. Lafontaine of
Belgium,regarding the jurisdiction of the proposed court. This speech
wasmade atthe 20thplenarymeetingofthe FirstAssemblyon 13Decem-
ber 1920on the occasion of the presentation of the report of Commit-
tee III on the Permanent Court of International Justice. He lamented the
failure of the proposed Statute to vest the Court with fullerjurisdiction.

The speaker reminded the Committee that an expectant world had
been "long agotold that the creation of an International Court would be
the only effectiveantidote to thedread supremacy of force" '.His speech
is deeply relevant to contemporary discussions of the powers of this
Court.

"In such circumstances 1feel how poor a thing is my eloquence.
Weneed a Demosthenes, aMirabeau, aJaurèsonthisplatform. 1cal1
upon you to listentothe sound that comesto you frombeyond these
walls, a great moaning like to that of the sea. It is the voices of the
mothers and the wiveswho are mourning for those whom they have
lost. Its the voice that rises from the peoples, the working masses
who are weary ofthe miseries and of the plagues which are striking
them and continue to strike them. . ..It isthe voiceofthose who are
sleeping buried on the battlefield, who have giventheir youth and
sacrificed hope and joy in order that there might be justice in the
world.
Nevertheless,wehave obtained inthe Statutesubmitted to youthe

Article14oftheCovenantandtheAdoptionbytheAssemblyoftheStatuteofthePennanent
Court,1920,p.232.388 APPLICATIONOFGENOCIDECONVENTION (SEP .P.WEERAMANTRY)

means of accepting a compulsoryjurisdiction of the Court. 1hope
that those who signthe Protocol, 1trust that al1the Delegationshere
present, willaccept the provisions of Article36." l

These are poignant words - words whose poignancy matches that of
the circumstancesbefore us.Theyhighlightthe veryproblem nowbefore
the Court.

Thatjurisdiction, though not ascompleteasmanyhad desiredwhen the
Statute of this Court was first formulated, has yet been worked, through
nearly 70 years of jurisprudence, to evolve a not insubstantial body of
international law which has served a valuable role in preservinginterna-
tional peace. To giveto those powers, incomplete as they are, a meaning
which attenuates them further by denyingthe Court theauthority to con-
serve its own jurisdiction through provisional measures of a binding

nature, when another equally sustainable interpretation is possible, isa
step awayfrom the idealismwhich gavebirth to the Court.

Moreover,times have changed since the era, more than 70 years ago,
whenforthe firsttimein worldhistoryaninternational court wascreated.
Manley O.Hudson captured thepressuresofthosetimeswhenhe wrotein
his treatise

"The term indicate, borrowed from treaties concluded by the
United States ... possesses a diplomatic flavor, being designed to
avoid offenseto the 'susceptibilitiesof States'.It may havebeen due
to a certain timidity ofthedraft~men."~

There was then a natural hesitancy in taking on this new jurisdiction
which wasasyetuntried. That natural hesitancyinthat incipientphase of
the Court's jurisdiction led to weak interpretations which have lefttheir
legacy to this day. Many decades of creative work since then enable a
more confident interpretation ofthe powers ofthe Court.

Thewords under examination,asshown inthe earlierpart ofthis opin-
ion, are thus, in accordance with accepted rules of legal construction,
clearly capable of bearing the meaning that they impose a legal obliga-

tion3. That is an interpretation supported also by sound legal principle

' DocumentsconcerningtheActionTakenbytheCounciloftheLeagueofNationsunder
Article14oftheCovenantandtheAdoptionbytheAssemblyoftheStatuteofthePermanent
Court,1920,p.233.
Manley O. Hudson,op.cit.,p.425.
As Hudsonobserved incontinuationofthepassage alreadycited:
"Anindicationby the CourtunderArticle41 is equivalentto a declarationof
obligation containedin ajudgment,and itoughtto be regardedas carryingthe
sameforce andeffect."(Op.cit.,p. 426.)and by the universal acceptance of nations. It is a principle which the

Court, at this stage of itsjurisprudence,can confidently assert. It should
of coursebe clear at al1times that the Order is only provisional, is not a
finalfinding of fact and leavesuntouched the matters that await thefinal
decision of the Court upon the merits.

To view the Order made by the Court as anything less than binding so
long asit stands would weaken the régimeof international law in the very
circumstancesin which its restraininginfluence is most needed.

For the reasons setout, the provisionalmeasuresordered by the Court
on 8 April 1993imposed a binding legal obligation on the Respondent.
Non-compliance withthat Order endangers the verysubject ofthe dispute
before the Court and can cause irreparable harm to the Applicant. This

irreparable harm isnot in regard to rights and duties such as areoften the
subject oflitigation,for we are here dealing withmatters under the Geno-
cide Convention, touching the very existence of a people. Aninterpreta-
tion which imposesanything short of a binding legal obligation upon the
Respondent is out of tune with the letter and spirit oftheCharter and the
Statute.

(Signed) Christopher ~re~oty WEERAMANTRY.